State Attorneys General Against the Patient Protection and Affordable Care Act of 2010

On June 28, 2012, the Supreme Court ruled 5-4 to uphold the Affordable Care Act, with Chief Justice Roberts providing the deciding vote.[1] The landmark decision was hailed as a partial victory by both ends of the political spectrum. Those who defended the President's healthcare overhaul felt the ruling vindicated the President and the law against accusations of unconstitutionality; those who opposed the law, including the 26 attorneys general who instigated the legal challenge, felt likewise redeemed insofar as two key provisos were determined by the Supreme Court as unnecessary to the overall preservation of the law.[2] For one, the court ruled to limit the federal government's authority to require states to participate in the coming Medicaid expansion. Second, the individual mandate failed to stand up to constitutional vetting vis a vis the Commerce Clause, and therefore would survive in the form of a tax. The latter proviso struck at the heart of the lawsuit, and guided Florida attorney generalPam Bondi's official statement on the ruling. “All of us who are disappointed with the ultimate outcome today cannot lose sight of what we accomplished. We fought for the principle that the Constitution limits Congress’s power to direct the lives of our people, and on that point, we won," she said.[3] Bondi served on behalf of Florida as lead plaintiff in the case.

In the wake of the historic passage of President Barack Obama's health care reform legislation on Christmas Eve in 2009, Troy King joined fourteen other state attorneys general in questioning not only the constitutionality of a specific controversial provision within the Senate version of the bill, but also exploring potential legal challenges to the measure as well. The stipulation in question was the back room deal Senate Majority Leader Harry Reid struck with Nebraska Senator Ben Nelson to recruit him as the 60th vote needed to pass the measure, an arrangement "dubbed the "Nebraska Compromise" or the "Cornhusker Kickback" by Republican critics." The agreement gives Nebraska exemption from its share of the Medicaid expansion, "a carve out that is expected to cost the federal government $100 million over 10 years."[4] King was quick to reject concerns among critics that the investigation was motivated by politics, contending that the group had been "reaching out to other attorneys general regardless of party."[5]

After South Carolina Attorney GeneralHenry McMaster, who was heading the organization of state attorneys general calling for an investigation into the back room deal, refused an offer by Senator Ben Nelson that the exemption given to Nebraska "would be offered to the other 49 states" if he "called off the dogs," King praised the decision and called the offer "unacceptable under any and all circumstances."[6][7]

On the same morning President Barack Obama signed into law his controversial health care reform measure, House Resolution 3590 - The Patient Protection and Affordable Care Act, the one that narrowly passed the United States House of Representatives just two days before, King and twelve other state attorneys general, all but one of them being Republican, filed suit against "the federal government to stop the massive health care overhaul, claiming it's unconstitutional."[8][9]

In late-September 2010, Luther Strange, who, at the time, was in the midst of his campaign for state attorney general, having defeated incumbent Troy King in the Republican primary, said that he would continue to participate in the legal challenge to the Patient Protection and Affordable Care Act that King had entered earlier in the year and called the reform measure an "intrusion" on the part of the federal government into the lives of average Americans.[10]

As part of his campaign, Horne promised to joined the twenty-plus other state attorneys general in challenging the constitutionality of the newly enacted federal health care reform measures, in particular the "individual mandate" that requires all citizens to purchase health insurance.[7]

In the wake of the historic passage of President Barack Obama's health care reform legislation on Christmas Eve in 2009, John Suthers joined fourteen other state attorneys general in questioning not only the constitutionality of a specific controversial provision within the Senate version of the bill, but also exploring potential legal challenges to the measure as well. The stipulation in question was the back room deal Senate Majority Leader Harry Reid struck with Nebraska Senator Ben Nelson to recruit him as the 60th vote needed to pass the measure, an arrangement "dubbed the "Nebraska Compromise" or the "Cornhusker Kickback" by Republican critics." The agreement gives Nebraska exemption from its share of the Medicaid expansion, "a carve out that is expected to cost the federal government $100 million over 10 years."[1][2]

On the same morning President Barack Obama signed into law his controversial health care reform measure, House Resolution 3590 - The Patient Protection and Affordable Care Act, the one that narrowly passed the United States House of Representatives just two days before, Suthers and twelve other state attorneys general, all but one of them being Republican, filed suit against "the federal government to stop the massive health care overhaul, claiming it's unconstitutional."[3] Suthers contended that the newly enacted health care law, in particular the "individual mandate" that would require citizens to purchase health insurance beginning in 2014, "violates constitutional principles and lacks constitutional authority."[4]

In the wake of the historic passage of President Barack Obama's health care reform legislation on Christmas Eve in 2009, Bill McCollum joined fourteen other state attorneys general in questioning not only the constitutionality of a specific controversial provision within the Senate version of the bill, but also exploring potential legal challenges to the measure as well. The stipulation in question was the back room deal Senate Majority Leader Harry Reid struck with Nebraska Senator Ben Nelson to recruit him as the 60th vote needed to pass the measure, an arrangement "dubbed the "Nebraska Compromise" or the "Cornhusker Kickback" by Republican critics." The agreement gives Nebraska exemption from its share of the Medicaid expansion, "a carve out that is expected to cost the federal government $100 million over 10 years."[1][2]

In a letter written to then-House Speaker Nancy Pelosi, House Minority Leader John Boehner, Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell in late-January 2010, McCollum argued that the "health care individual mandate provisions as currently drafted violate constitutional principles and lack constitutional authority for Congress to enact."[3] He warned that the constitutionality of the law was questionable considering that Congress had never before compelled citizens of this country, under threat of economic force, to purchase unwanted products or services simply as a condition of existence.

Initially, GovernorCharlie Crist was quite supportive of McCollum's legal challenge against the federal health care law, chastising Democrats for refusing "to pass meaningful, bipartisan health care legislation with real solutions, and instead passed a bill that includes an extensive government overreach and intrusion into our citizens’ personal freedoms."[6] However, after it became apparent he would not win the Republican nomination in the race for the United States Senate and he switched his party affiliation to that of an independent, Crist essentially went back on this statement when, during an interview, he stated that if he had been in the Senate, he would have voted in favor of the health care reform legislation.[7]

Liberal political activists calling themselves "Not in Our Name, Not on Our Dime" convened on Tallahassee to deliver what they claim was a "60-foot petition signed by more than 7,300 Floridians opposed to the use of taxpayer dollars to be used in the lawsuit that Attorney General Bill McCollum is leading to try to stop the new federal health care reform legislation."[8] At around the same time, Quinnipiac University released data from a survey showing a majority of state residents interviewed, nearly fifty-four percent, opposed McCollum's legal action against the federal health care reform measure.[9]

Two weeks after clinching the statewide position in the general election, Pam Bondi, a former state prosecutor, brought McCollum aboard as a chair of her transitional team.[11] The next day, she and McCollum sent a letter to thirteen other states including Alabama, Arizona, Georgia, Kansas, Ohio, and Oklahoma, each of which were Republican pick-ups in the midterm election, requesting they join the twenty states that had already jointly filed suit against the federal government.[12]

While Federal JudgeClyde Roger Vinson expressed skepticism over the states' argument "that the law forces states into a costly expansion of their Medicaid insurance programs for the poor," he was quite sympathetic to that claim that the mandate forcing all American citizens to purchase health insurance violates the Constitution.[13] Vinson remarked that "the individual mandate [would be] “a great leap” on the notion of economic activity that falls within the Commerce Clause’s parameters" should the Supreme Court adopt that as a constitutional basis for the law.[14][15]

Six weeks to the date after he delivered his initial assessment of the case, Federal JusticeClyde Roger Vinson handed down his final ruling, striking down not only the "individual mandate," but the federal health care reform law as a whole. On the issue of the provision requiring all citizens to purchase health care coverage, Vinson argued that it would be a "radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause" and that if the federal government was given such extensive power that it would not be a stretch to suggest that "Congress could do almost anything it wanted."[16] He dismissed the federal government's defense of placing the legislation within the boundaries of the Commerce Clause, arguing that the uninsured "are actively engaged in interstate commerce based on the purported “unique” features of the much broader health care market," contending that if Congress asserts power that exceeds the authority granted to it by the Constitution, then it is unconstitutional, "regardless of the purported uniqueness of thecontext in which it is being asserted."[16] Since "activity," Vinson's decision reads, "is required under the Commerce Clause," the "individual mandate," which punishes those who refuse to purchase health insurance, exceeds Congressional powers under the constitutional provision. In comparing the health care law to a finely crafted watch, Vinson ruled against severability, a legal concept that allows for the remainder of the contract to still apply even if parts of it are held to be either illegal or unenforceable, stating that there were "simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate" to make such a concept logistically possible.[16] In conclusion, Vinson ruled that since "the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit," the entire law must be declared void.[16]

As a result, Governor Perdue, who is given the right within the state constitution to appoint a special attorney general with the exact same power and authority as the state attorney general in specific instances such as this, announced that was assembling a team of pro bono lawyers to serve in Baker's stead. Republican State Representative Ed Setzler threatened that "if Baker moves to block Perdue’s selection of an outside lawyer to act as a special attorney general some House Republicans may move forward with articles of impeachment;" Baker's office said he had no intention of doing so.[2]

Regardless, on Tuesday, March 30, 2010, Republican State Representative Mark Hatfield filed a resolution to impeach Baker, who, he claims, "abdicated his authority and has committed an act against the state of Georgia."[3]

In the midst of his campaign for state attorney general, RepublicanSamuel S. Olens argued that the suit against the federal government over the expansive health care measure should not be bantered about as a "partisan issue" as the "law supersedes state sovereignty and the Tenth Amendment to the Constitution," a very serious issue.[4]

On Wednesday, March 17, 2010, RepublicanGovernorC.L. "Butch" Otter "became the first state chief executive to sign a measure requiring his attorney general to sue Congress if it passes health reforms that force residents to buy insurance."[1] While mainly a symbolic gesture, it signified the growing national discontent over the national healthcare reform legislation advocated by both President Barack Obama and the Congressional Democratic leadership, not to mention the methods by which they hoped to achieve their goal.

On the same morning President Barack Obama signed into law his controversial health care reform measure, The Affordable Patient Protection Act of 2009, the one that narrowly passed the United States House of Representatives just two days before, Lawrence Wasden and thirteen other state attorneys general filed suit against "the federal government to stop the massive health care overhaul, claiming it's unconstitutional."[2][3]

In late-September 2010, several months after Idaho had joined nineteen other state attorneys general in filing suit against the federal government over the expansive health care reform measure, Wasden received a letter from several local doctors requesting that he "pull out of a federal lawsuit that they say wastes taxpayer money and bars Idahoans from the care they need."[4] The physicians who issued the letter belong to Doctors for America, which describes itself as a nonprofit organization of 15,000 physicians and medical students who seek to gain affordable access to quality care for all. The group was originally known as Doctors for Obama during the course of the 2008 United States Presidential election and have been strongly aligned with the Obama administration in helping to promote the President's health care agenda, including participating in White House webinar meetings on topic.[5]

The day after the United States House of Representatives narrowly passed the Senate reconciliation bill on health care reform, DemocratGovernorPat Quinn stated proudly that, unlike other states, he would not be instructing his state's top law enforcer to oppose the reform measure through litigative efforts. Instead, he added, Illinois would warmly embrace it. Though the new health care legislation would expand Medicaid, Quinn argued that he didn't "think adding participants to the Medicaid rolls would add to Illinois' deficit," which stands at $12.8 billion.[1][2]

On the same morning President Barack Obama signed into law his controversial health care reform measure, The Affordable Patient Protection Act of 2009, the one that narrowly passed the United States House of Representatives just two days before, Republican Congressman Aaron Schock issued a letter, sponsored by fellow Illinois representatives Judy Biggert, Peter Roskam, John Shimkus, Tim Johnson, and Don Manzullo, calling upon Illinois Attorney GeneralLisa Madigan to join other state attorneys general in suing the federal government. Schock argued that the measure "blatantly violates the commerce clause of the Constitution [because] Congress has no authority to require individuals to buy insurance." Furthermore, the letter states, the "bill would add more than $1 billion in extra Medicaid costs to the state's obligations," directly contradicting GovernorPat Quinn's remarks just the day before.[3]

Also on Tuesday, March 23, 2010, State SenateMajority LeaderChristine Radogno requested Madigan's office to provide legal opinions to questions related to the passage of the health care reform measure. The first asked whether the mandatory insurance requirement violates the Commerce Clause of the United States Constitution; the other challenged the legality of the legislation based on whether or not it usurped powers reserved to the states relegated to them through the Tenth Amendment.[4]

Nearly a week after both state and federal legislators representing the citizens of Illinois issued letters requesting that she join other states in filing suit against the federal government, Madigan waves off suggestions that the animosity of the American public aimed at the newly enacted health care reform bill meant the measure was seriously flawed. Instead, she insisted, it is merely a bi-product of its historic nature. "If you look back, most significant legislation — whether it was the Social Security Act, the Voting Rights Act, even Medicaid — they weren't necessarily popular at the time they passed," she argued, so "looking back at those issues in historical context gives you better perspective."[5]

On March 23, 2010, Zoeller joined thirteen other State Attorneys General, all but one being Republican, in filing suit against "the federal government to stop the massive health care overhaul, claiming it's unconstitutional."[1][2] The newly-elected Indiana Attorney General stated that he would "join in the most appropriate legal actions available to represent the significant interests of our state in this matter."[3]

Using Indiana Code 4-6-8-2, which authorizes the state's attorney general to "make any reasonable or appropriate investigation or study of any such existing or proposed federal legislation whenever he is specifically requested so to do by any of this state's senators or representatives in congress and report the result thereof as requested," United States Senator Richard Lugar asked Greg Zoeller to "conduct a legal analysis of the constitutionality of provisions of the federal healthcare bill" on January 5, 2010.[4][5] The Indiana Attorney General had received similar inquiries from other congressmen, including Representatives Dan Burton and Mike Pence, at around the same time.

About a month later, Zoeller published a fifty-five page report on his findings. Based on the language of the Senate Amendment 2786 to the House Resolution 3590 - The Patient Protection Affordable Care Act, he argued that the bill "would add roughly half a million more Hoosiers to the Medicaid rolls and create unintended consequences for patients, taxpayers and Indiana's medical-device industry." Not only would the federal legislation increase the state's Medicaid costs by $2.4 billion over ten years, but would also "divert pharmaceutical rebate savings from the states to the federal government, potentially resulting in a loss to Indiana of $750 million by 2019." Furthermore, the report states, the federal health care plan would ultimately spell the end for the Healthy Indiana Plan, which allows low-income state citizens to purchase state-run health coverage, while at the same time failing to achieve one of the legislation's major goals of reducing health care costs, as promised by Congress.[6]

Zoeller was among a small group of attorneys general to take part in the oral arguments against the constitutionality of the individual mandate component of the law before the U.S. Supreme Court in March, 2012. Three months later, the Court ruled by a 5-4 vote to uphold the law, with the proviso that the mandate penalty be preserved in the form of a tax. Although he was disappointed in the court's decision, Zoeller defended the time and effort he invested in the lawsuit. “I still maintain it was not a frivolous case. It will give us guidance on what authority the federal government has and doesn’t have,” he told a reporter after the announcement. Zoeller also urged the public, particularly those who, like him, had hoped for a different outcome, "to maintain civility and respect for the U.S. Supreme Court."[7]

About three weeks after the historic passage of the United States Senate version of the health care reform legislation on Christmas Eve in 2009, former Attorney General of KansasStephen Six wrote a letter to then-House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid requesting the removal of language in the bill that would benefit Nebraska at the expense of other states. The stipulation in question was the back room deal Reid struck with Nebraska Senator Ben Nelson to recruit him as the 60th vote needed to pass the measure, an arrangement "dubbed the "Nebraska Compromise" or the "Cornhusker Kickback" by Republican critics." The agreement gives Nebraska exemption from its share of the Medicaid expansion, "a carve out that is expected to cost the federal government $100 million over 10 years."[1] Six argued that the "special treatment for Nebraska would unfairly require taxpayers in Kansas and other states to share the cost of health care reform."[2]

The day President Obama signed the Patient Protection Affordable Care Act into law, Republican Congressman Lynn Jenkins and State Senator Jim Barnett requested that the state's attorney general join fourteen other states in challenging the constitutionality of the health care reform measure.[3] In addition to the unconstitutionality of the "individual mandate" that would require all citizens to purchase insurance, "the bill’s expansion of Medicaid imposes a fiscal strain on state budgets already hurting from the economic downturn," such as Kansas, which, at the time, was suffering from a $400 million shortfall.[4]

However, after completing a legal review of the health care reform measure, Six declined requests to sue the federal government over the issue after he and his staffers failed to find "any constitutional defects" in the law.[5] Insisting that his decision was "based strictly on the law, not politics," he argued that the suit had little to no chance of success, noting that the United States Supreme Court often refused to overturn legislation "unless a clear and direct constitutional violation is shown."[6] Furthermore, Six stated, he did not feel it was in the best interest of Kansas taxpayers to squander scarce resources during the time of a budget shortfall.

Not long after the dust had settled following the contentious 2010 midterm election, in which DemocratStephen Six was removed from office as the state's top attorney, former Republican State Senator Derek Schmidt, who was declared the winner of the contest, announced that he expected "to bring the state into a legal challenge to the new federal health care law soon after taking office."[7] He rebuffed criticism that there was no "legal reason to get involved at all" in the suit, noting that while he expected his office a few thousand dollars on the legal challenge, "the outcome could define the relationship between the states and the federal government for a generation."[8]

Two days after being inaugurated as the state's forty-second attorney general, Schmidt requested that Pam Bondi, the Attorney General of Florida, who was also elected to office for the first time in the 2010 midterm elections, to "file a motion to allow Kansas to join the 20 states that originally brought the lawsuit" against the federal government over the health care reform law.[9]

The morning after the United States House of Representatives narrowly passed the Senate reconciliation bill on health care reform, RepublicanGovernorBobby Jindal requested that Democratic State Attorney General Buddy Caldwell "join other attorneys general in a court challenge of the federal health care overhaul."[1] The new health care legislation will cost the state of Louisiana $345 million more a year as a result of the expansion of Medicaid covered by the states. Caldwell and thirteen other State Attorneys General filed suit against "the federal government to stop the massive health care overhaul, claiming it's unconstitutional."[2]

Two weeks later, State Representative Cedric Richmond and several other members of the Louisiana Legislative Black Caucus (LLBC) "filed a resolution with the House of Representatives to formally request that Caldwell drop the suit," believing that it was not in the best interest of the state's citizens.[3] State Representative Regina Barrow, who chairs the LLBC, argued that the state stood "to gain more that would could ever lose" from the newly enacted reform measure.

With Republicans controlling all three major facets of the state government and a Republican named as the state's top prosecutor, Maine is in the perfect position to join twenty-plus other state attorneys general in challenging the federal health insurance mandate, also referred to as Obamacare. Schneider, a former state representative who was elected as state attorney general by the State Legislature in December 2010, has stated that he is weighing his options concerning involving the state in challenging the constitutionality of the health care reform measure. He contends that there are "no provisions in the constitution that give the federal government that kind of power."[1]

In addition to both houses of the State Legislature and the governor, Olympia Snowe and Susan Collins, both members of the United States Senate, have signed onto an amicus brief in support of the twenty-plus state attorneys general who have already filed suit against Obamacare in court.

Janet Mills, who had served as the state's top prosecutor prior to Schneider's appointment, argued against Maine's involvement, believing that "taxpayers will end up spending as much as $400,000 in legal fees while the state’s input would have no effect on the outcome of the case."[1]

That same day, Swanson, through her spokesman, seemed to rebuke the governor's inquiry noting that neither the House bill had been signed nor had the reconciliation proposal been passed by the United States Senate. Furthermore, she argued, her office was not willing "to make any legal comments until we have had the opportunity to review the 2,400-page bill.[1]

Even after President Barack Obama had signed the controversial House Resolution 3590 - The Patient Protection and Affordable Care Act into law on Tuesday, March 23, 2010, Swanson had not yet made a decision as to whether or not she would pursue litigation against the federal government over the matter. The Minnesota Attorney General, as a direct result of what some perceive to be delay tactics, has faced increasing pressure from Republican members of State Legislature, including State Senator Julianne Ortman, who have argued that "her political agenda has gotten in the way of her responsibilities to serve the residents of the state."[2]

The day after the United States House of Representatives narrowly passed the Senate reconciliation bill on health care reform, RepublicanGovernor of MississippiHaley Barbour called upon the state's attorney general to "challenge the federal government over the constitutionality of requiring individuals to purchase health insurance." He threatened that if Hood refused to do so then he would act on the state's behalf in his stead.[1]

Despite Barbour setting noon on Thursday, March 25, 2010, as the deadline for Hood to decide whether or not to pursue litigation against the federal government on the issue of health care reform, the Mississippi Attorney General's office stated that it needed more time to review the legislation before reaching a decision. Furthermore, Hood argued, the governor "is not authorized to file suit while the attorney general's office completes its review."[2][3]

While promising not to interfere with the governor's suit, Hood did, however, argue that he believed it would be "cheaper for Mississippi to join the lawsuit once it gets to the U.S. Supreme Court, if some viable cause of action arises during the years of litigation."[4]

Nearly three months after President Obama signed into law his controversial health care reform bill, the one that narrowly passed the United States House of Representatives just two days prior, members of the Missouri House of Representatives, speaking at a hearing for the Special House Standing Committee on General Laws, discussed calling upon Koster "to sue the federal government for violating the constitution with its passage" of the insurance mandate.[1]Ward Franz, a Republican representative from the one hundred and fifty-first house district, argued against such action; he had been told by the state attorney general himself that he had no plans to follow through with such litigation even if requested by the general assembly to do so. Beth Low, a Democratic representative from the thirty-ninth house district, also advised against such a course of action believing it to be waste of taxpayer resources and noting that Lieutenant GovernorPeter Kinder had already pledged to take up the issue himself.

Lieutenant GovernorPeter Kinder, along with three state residents, filed suit in federal court against the federal healthcare measure on Thursday, July 8, 2010. In challenging provisions of the federal legislation, Kinder argued that the cash-strapped state could not "afford the huge financial burden of this bill."[2] Furthermore, he argued, it would only serve to reduce state residential access to affordable health care options.

Four days later, however, State Attorney General Koster filed a motion in federal court to try and block Kinder from getting the state embroiled in the national healthcare debate. Koster "contends Kinder should not be allowed to sue in his official capacity and wants that part of the lawsuit dismissed."[3] A spokesman for the lieutenant governor argued, however, that Kinder has a statutory duty to defend seniors in Missouri and that part of the federal law would do considerable harm to them.

On August 3, 2010, the voters of Missouri overwhelmingly voted in favor of Proposition C, a measure aimed to block the federal government from requiring people to buy health insurance and banned punishment for those without health insurance.[4][5] With slightly over seventy-one percent of voters supporting the referendum, the results were a clear refutation of the Obama White House and national Democratic leadership. Upon closer examination, the statistics of the primary voter turnout made the situation even worse for Democratic politicians. Though Republicans clearly outnumbered Democrats(577,000 Republican voters against 315,000 Democratic electors), the turnout meant that "a significant amount of Democrats either supported the ballot measure repudiating ObamaCare, or didn’t bother to cast a vote to defend the program."[6] Furthermore, Proposition C garnered more votes then either of the major party primaries for the United States Senate combined.

At the start of the new year, two months after Republicans made significant gains both nationally and in surrounding Midwestern states, the Show-Me Institute, a free-market think tank, sent out an "urgent call for action" requesting its supporters to contact the state attorney general's office to demand that Koster join twenty-plus other state attorneys general in filing suit against the federal government over the individual mandate.[9] Group leaders believed that Koster had until January 10th to reach a decision.

Around the exact same time, State Republican lawmakers were putting pressure on Koster to either join the twenty-plus other states, or file his own separate lawsuit challenging the newly enacted federal health care reform measure, as Virginia had done. The State House Rules Committee passed a non-binding resolution, strictly along party lines, calling upon the state's attorney general to challenge the constitutionality of the federal health care law. The symbolic health care vote, sponsored by Republican State Representative Ward Franz, the Majority Caucus Leader, received the approval of seven Republicans and the opposition of three Democratic state lawmakers.[10]

The Missouri House of Representatives, under Republican majority leadership, approved the non-binding resolution the next day by a vote of 115 to 46. Republican State Senator Jane Cunningham, a representative of the seventh district, filed a companion resolution also urging Koster to reach a decision on whether or not to challenge the federal health care reform law.[11]

RepublicanGovernorJim Gibbons, in a letter date the day after President Barack Obama signed into law the controversial health care overhaul bill, urged Catherine Cortez Masto to join other state attorneys general in filing suit against the federal legislation, arguing that "if there was ever an appropriate time for a governor of this State to request a suit be commenced on behalf of the State of Nevada, this is that time." Health and welfare officials statewide estimated that Medicaid requirement in the bill alone would cost Nevada an additional $613 million by the year 2019. In response, however, the Nevada Attorney General insinuated that she was unwilling to do so, stating that "if this office institutes litigation against the Federal Government, that lawsuit will have a solid basis in law and will be able to withstand the scrutiny of a federal court."[1]

About a week later, Masto came out staunchly against the idea of filing suit against the federal government, insisting that the "authority given to Congress is extensive and appears strong enough to support the act.” Gibbons, arguably upset with the state's top law enforcer's decision, said, in response, that he would consider his options on whether or not to move forward with the litigation on his own.[2]

One week later, Cordray announced that he would be turning down a request made on behalf of Republican State Senator Gary Cates and seven additional state legislators for Cordray to challenge the constitutionality of the health care reform legislation, arguing that he felt that the suit had "no legal merit and would needlessly tie up the resources of his office."[2]

References

In the wake of the historic passage of President Barack Obama's health care reform legislation on Christmas Eve in 2009, Edmondson joined fourteen Republican Attorneys General in questioning not only the constitutionality of a specific controversial provision within the Senate version of the bill, but also exploring potential legal challenges to the measure as well.[1] The stipulation in question was the back room deal Senate Majority Leader Harry Reid struck with Nebraska Senator Ben Nelson to recruit him as the 60th vote needed to pass the measure, an arrangement "dubbed the "Nebraska Compromise" or the "Cornhusker Kickback" by Republican critics." The agreement gives Nebraska exemption from its share of the Medicaid expansion, "a carve out that is expected to cost the federal government $100 million over 10 years."[2]

Despite this initial involvement, Edmondson changed his tune four months later while in the midst of his gubernatorial campaign. Three months after President Obama signed into law his controversial health care reform bill, the one that narrowly passed the United States House of Representatives just two days prior to this, "Edmondson says he decided not to challenge the law after members of his staff spent hundreds of hours examining the 2,500-page bill."[3] He insisted that politics had no affect on his decision.

Though his predecessor, DemocratDrew Edmondson, gave up on litigation against the federal health care measures, conveniently, as his critics argued, as he was vying for the party nomination in the race for governor, incoming RepublicanState Attorney GeneralScott Pruitt said he plans to move forward on the legal action as soon as he takes office. However, he has yet to decide "whether to take action here on Oklahoma or join one of the other suits against the law."[4]

In the wake of the historic passage of President Barack Obama's healthcare reform legislation on Christmas Eve in 2009, Abbott was one of ten Republican Attorneys General questioning not only the constitutionality of a specific controversial provision within the Senate version of the bill, but also exploring potential legal challenges to the measure as well. The stipulation in question was the back room deal Senate Majority Leader Harry Reid struck with Nebraska Senator Ben Nelson to recruit him as the 60th vote needed to pass the measure, an arrangement "dubbed the "Nebraska Compromise" or the '"Cornhusker Kickback" by Republican critics." The agreement gives Nebraska exemption from its share of the Medicaid expansion, "a carve out that is expected to cost the federal government $100 million over 10 years."[1] The Attorney General of Texas roundly criticized Senator Nelson's pact with Reid, calling it an "unprecedented and highly questionable backroom deal."[2]

Nearly three months later, on the very night the United States House of Representatives narrowly approved the Senate reconciliation bill on health care reform by a vote of 219 - 212, Abbott posted on his Facebook page that he was "organizing a conference call tonight for AGs across the country. We will discuss our litigation strategy about the healthcare bill."[3]

Two days later, shortly after President Barack Obama signed into law his controversial reform measure, Abbott and twelve other Attorneys General, all but one being Republican, filed suit against "the federal government to stop the massive health care overhaul, claiming it's unconstitutional."[4] In a written statement issued that same day, Abbott affirmed that he would do everything within his powers as state attorney general "to protect all Texans' constitutional rights, preserve the constitutional framework intended by our nation's founders, and defend our state from further infringement by the federal government."[5]

Barbara Ann Radnofsky, the Democratic nominee challenging Abbott in the state's attorney general race, sharply chastised him for advancing the litigative efforts, calling it ""headline-seeking behavior to establish his right-wing bona fides as he seeks higher office." In response, the Attorney General of Texas remarked that his opponent's comment was the perfect example of how vastly different each of them are ideologically. "I am going to step up and take on the federal government ... whereas my opponent is willing to sit on the sidelines and criticize those who challenge the federal government," he said.[2]

In an interview conducted by The Statesman a week after the passage of House Resolution 3590 - The Patient Protection Affordable Care Act, Abbott laid out, roughly, how long he expects the legal battle over health care reform to take. Given that the courts simply to declare what the law says, thus excluding the need for witnesses or anything else that would prolong a case, it "should be such that the trial court can make a ruling this calendar year if the court moves swiftly, and we can get it up to the ultimate court that will decide this case, the U.S. Supreme Court, in a two-year timetable."[6]

Texas Health and Human Services Executive Commissioner Tom Suehs said in testimony before the Texas State Senate that United States Representative Henry Waxman was severely lowballing the true cost of the federal health care overhaul bill for the state of Texas. Rather then the $1.4 billion, as Waxman had argued, Suehs pegged the true cost of the controversial reform legislation for the Lone Star State at $27 billion. This is largely the result of the "2.1 million more people expected to come onto Texas' Medicaid program in the wake of reform."[7][8]

One week after the Virginia General Assembly passed a "bill that would make it illegal for the [federal] government to require individuals [within the state] to purchase health insurance," a precautionary measure being considered by thirty-seven other states in case Congressional Democratic leadership in Washington D.C. were able to pass their far-reaching healthcare reform legislation, Cuccinelli announced "Virginia will file suit against the federal government if" the United States House of Representatives passed the Senate version of the healthcare measure, as was expected to occur before the Easter recess[1][2]

In addition to this, the Virginia Attorney General also issued a letter addressed to House Speaker Nancy Pelosi (D-California) warning her that if she chose to enact the healthcare reform bill through the use of the "deem and pass" or Slaughter Solution, which would avoid the need for a conventional House vote, more constitutional challenges would be filed by the states, including Virginia. Speaking with Greta Van Susteren on her FOX News program on Thursday, March 18, Cuccinelli said he would appear in court the very next week after President Obama signed the bill if the House used the unconstitutional "deem and pass" rule to enact it.[3] Ultimately, the House decided against using the controversial tactic to pass the Senate's version of the health care bill.[4]

The morning after the United States House of Representatives narrowly passed the Senate reconciliation bill, Cuccinelli said he would follow through with his threat and file suit against the federal government. He is expected to "argue that the bill, with its mandate that requires nearly every American to be insured by 2014, violates the commerce clause of the U.S. Constitution."[5][6]

The Virginia Attorney General argued not only will the litigation against the federal health care measure cost no more than the $350 legally required filing fee, it could ultimately "save the commonwealth more than $1 billion in estimated costs."[7] The health care overhaul is expected to cost the state of Virginia $1.1 billion over seven years, beginning in 2015, mainly as a result of the new Medicaid requirements, according to estimates calculated by the governor's office.

On Monday, August 2, 2010, the Honorable Henry Hudson, a federal judge for United States District Court for the Eastern District of Virginia, ruled "that the state of Virginia could proceed with its challenge to President Barack Obama's landmark healthcare law."[8] Though refusing to comment on the arguments in the case at this point, Hudson did however note that the issue raised by the states, specifically whether or not the federal government has the authority under the Commerce Clause to force citizens to purchase insurance, had not yet fully been tested in the court system. Furthermore, he stated that he had "not [been] persuaded that the Secretary has demonstrated a failure to state a cause of action with respect to the Commerce Clause element."[9][10]

On October 18th, the first day the suit was presented before the court, Judge Henry E. Hudson remarked that he would have a decision by the end of the year. However, he also acknowledged that his decision would be "only one brief stop on the way to the United States Supreme Court.”[11]

Nearly two months later, Judge Hudson had reached a decision, ruling that the requirement that all individuals purchase health care coverage under the "individual mandate" exceeded "the constitutional boundaries of congressional power."[12] He rejected the Obama Administration's argument that the federal government has the authority to implement the "individual mandate" under the provisions of the Commerce Clause of the United States Constitution. Judge Hudson noted that “same reasoning could apply to transportation, housing or nutritional decisions” and that “this broad definition of the economic activity subject to congressional regulation lacks logical limitation.”[13] In spite of his ruling striking down a key component of the federal health care reform measure, Judge Hudson refused to issue an injunction "stopping implementation of the entire law," noting that the unconstitutional elements of the law could be severed from the whole.[14] But since the "individual mandate" "collects most of the money that is supposed to flow into the system from millions of additional participants," analysts contend, the loss of this portion of the law makes its execution "severely compromised and could rock the foundation of other provisions in the legislation."[15]

In the wake of the historic passage of President Barack Obama's healthcare reform legislation on Christmas Eve in 2009, McKenna was one of ten Republican Attorneys General questioning not only the constitutionality of a specific controversial provision within the Senate version of the bill, but also exploring potential legal challenges to the measure as well. The stipulation in question was the back room deal Senate Majority Leader Harry Reid struck with Nebraska Senator Ben Nelson to recruit him as the 60th vote needed to pass the measure, an arrangement "dubbed the "Nebraska Compromise" or the "Cornhusker Kickback" by Republican critics." The agreement gives Nebraska exemption from its share of the Medicaid expansion, "a carve out that is expected to cost the federal government $100 million over 10 years."[1]

McKenna stated that one legal course of action Republican Attorneys General are exploring is a lawsuit should the Senate version of the bill be signed into law by the President this February as he has promised. “One of the reasons we have checks and balances is to raise questions about what the majority is doing,” said McKenna in an interview. “We’re taking a second look at [the Nelson agreement] because we think it’s what the Constitution was designed to prevent.”[1]

On the same morning President Barack Obama signed into law his controversial health care reform bill, the one that narrowly passed the United States House of Representatives just two days before, McKenna and thirteen other Attorneys General, all but one being Republican, filed suit against "the federal government to stop the massive health care overhaul, claiming it's unconstitutional."[2]

Since announcing the suit, Democrats within the State Legislature have made moves toward blocking, or at least severely hindering, the litigation, such as enacting "a budget proviso to block McKenna from spending state money on the lawsuit" in addition to filing "a broad public-records request with McKenna's office, demanding to see all documents related to his decision."[3]

McKenna ordered a modified security lockdown of the Highway Licenses Building on Friday, March 26, 2010, in anticipation of the progressive political activist group, Fuse Washington, delivering a petition containing eighteen thousand signatures requesting "McKenna to drop his suit and not to sacrifice Washington’s health for partisan politics.”[4]

The next day, a rally organized by the conservative political action group Americans for Prosperity was held on the steps of the State Legislative Building, in which between 800 and 4,000 individuals came out in support McKenna's decision to sue the federal government over the controversial health care legislation. Speaking at the event, the Washington Attorney General stated that "the lawsuit is about individual rights and that the federal government can’t force us to go out and buy what they tell us to buy.” Also present at the rally were Republican state senators Mike Carrell and Val Stevens as well as state representative Tom Campbell.[5][6]

On December 6, 2010, Attorney GeneralJ.B. Van Hollen told the Associated Press that he was beginning work on challenging the constitutionality of federal health care reform. Van Hollen was weighing his options towards filing his own lawsuit or joining 20 other states that already filed in a Florida federal court. Van Hollen was forced to wait to take action until January 3, 2011, when RepublicanScott Walker was sworn in as Governor[1]. He subsequently joined what would become a coalition of 26 state attorneys general in the lawsuit against the federal government over the law.[2]

Speaking to reporters at a press conference the day after President Barack Obama signed into law his controversial health care reform bill, the one that narrowly passed the United States House of Representatives just two days before, DemocratGovernorDave Freudenthal said Attorney GeneralBruce A. Salzburg would not be joining fourteen other state attorneys general in a suit against the federal government opposing the measure. His reasoning behind this decision was, he said, based on the fact that "they have plenty of plaintiffs and plenty of lawyers and when the Supreme Court rules, whichever way they rule, it still affects Wyoming."[1]